In 2012 the Immigration Rules were changed so that children with 7 years of residence in the UK might potentially qualify for leave to remain. The relevant rule is paragraph 276ADE of the Immigration Rules. No similar provision was made in the Immigration Rules for a child’s parents, though, and a child’s application will only succeed if he or she can show that it would not be “reasonable” for him or her to relocate abroad.

The Home Office approach to such cases is to say that where the parents have no separate right to remain in the UK under the Immigration Rules — which is in almost all cases — then it would almost always be reasonable for the child to accompany his or her parents abroad back to the country of nationality.

A new case, PD and Others (Article 8 – conjoined family claims) Sri Lanka[2016] UKUT 108 (IAC), sets out the correct approach to these difficult cases. In this post we will take a look at the new case but also rehearse some of the legal background.

7 years is a long time for a child

From a child’s perspective, seven years of residence can be literally a lifetime. It may be the sum of all the child’s experience and is all they know, rather than merely a given seven year period in the life of an adult.

A young child in particular does not exercise choice about country of residence in the way that an adult does: an adult might make an informed choice to move to another country in the knowledge that he or she may have a precarious status and should not put down roots. That is just not true of a child.

If we consider the context of some of the other significant periods of residence that apply to adults and children we can see that residence after seven years would be a sensible precursor to settlement or citizenship. It falls high to midway between the periods of lawful residence necessary for adults to obtain settlement with their family members. The seven years of residence for children can be lawful or unlawful – but a child is of course unaware of and not responsible for his or her own compliance or otherwise with immigration law requirements.

The general approach to continuous and long lawful residence is that adults will qualify for settlement after ten years continuous lawful residence in temporary categories: paragraph 276B. This rule also applies to children in their own right. Since July 2012, adults generally need to reside for 30 years to achieve settlement if any or all of the residence is unlawful: 20 years to qualify for limited leave to remain under paragraph 276ADE(1)(iii) then 10 further years to qualify for Indefinite Leave to Remain.

In addition, adults will qualify for settlement after five years continuous residence in certain skilled migration categories, such as Tiers 1 and 2 of the Points Based System. Entry under the family routes in Appendix FM also leads to settlement after five years. The dependent child of such an adult will also qualify for settlement at the same time, but here their situation is dependent on that of the adult.

Some adults can qualify for settlement even before five years of residence. Since the extension of the “probationary period” for spouses in 2012 this is now restricted to Tier 1 Investors able to make a substantial investment of £5 million or £10 million.

It is also relevant to consider that children born in the UK will qualify for registration as full British citizens after ten years of residence, whether their residence is lawful or not: s.1(4) of the British Nationality Act 1981. A rule permitting settlement after 7 years would therefore be a sensible precursor to full citizenship. Adults need at least six years of residence before they can naturalise, but the residence has to be of a certain type (lawful with the final 12 months being free of any conditions).

The old 7 year policy

Until 2008 children who resided in the UK for seven years would permitted to remain under a Home Office policy called DP5/96, as would their parents. There were certain public interest ‘escape’ clauses for the Home Office – if the parents had deliberately gone to ground, committed offences or similar – but most applications under this policy would succeed. The policy existed for many, many years and forms an important context to later discussion of the same issue. It was considered extensively in the Court of Appeal case of NF (Ghana) v SSHD[2008] EWCA Civ 906.

It is also perhaps an example of the replacement of humane discretionary policies with ultimately weaker and sometimes illusory human rights protections. Although the removal of those minimum and minimal human rights standards now would leave us with nothing, basically.

The 2012 changes to the Immigration Rules

When the Immigration Rules were changed in July 2012 (Statement of Changes HC 194), seven years of residence by a child was formally incorporated into the rules as a sufficient period to justify continued residence by the child and parents. The explanatory notes accompanying that particular change (paragraph 7.6) stated that:

The key test for a non-British citizen child remaining on a permanent basis is the length of residence in the UK of the child – which the rules set at at least the last seven years, subject to countervailing factors.

The Rules deal clearly with how to treat British citizen and other children in cases where we would otherwise intend to remove their parent(s) and how countervailing factors should weigh in the decision. There are some circumstances where children may be allowed to stay on a permanent or temporary basis on best interests grounds. The key test for remaining on a permanent basis is around the length of continuous residence of a child in the UK – which we have set at 7 years, subject to countervailing factors. We consider that a period of 7 continuous years spent in the UK as a child will generally establish a sufficient level of integration for family and private life to exist such that removal would normally not be in the best interests of the child. A period of 7 years also echoes a previous policy (known as DP5/96) under which children who had accumulated 7 years’ continuous residence in the UK were not deported, which is still referenced by the Courts on occasion. In policy terms, we would not propose a period of less than 7 years as this would enable migrants who entered the UK on a temporary route (for example a route limited to 5 years in the UK) to qualify for settlement if they had brought children with them. The changes are designed to bring consistency and transparency to decision-making.

In December 2012, though, a new criterion of whether it would be reasonable for the child to leave the UK was added by Statement of Changes HC 760 (see Sarah Pinder’s write up at the time here). The current test is at paragraph 276ADE(1)(iv) of the Immigration Rules:

is under the age of 18 years and has lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and it would not be reasonable to expect the applicant to leave the UK

The Home Office position in almost all cases seems to be that it would be reasonable for a child to accompany his or her parents abroad, so very few applications under this rule are currently succeeding.

Some provision is made in Appendix FM for the parents of a child to remain in the UK for 7 years, but only if one of the parents is British or settled (paragraph EX1) or if the parents are separated (family life as parent of a child route). There is no provision within the Immigration Rules where neither of the parents have any status and the parents are still together.

Statutory incorporation of the 7 year period

The changes to the Immigration Rules in 2012 were followed by changes to primary legislation in the form of the Immigration Act 2014. This Act introduced a new Part 5A into the Nationality, Immigration and Asylum Act 2002, which imposes a duty on judges to “have regard to” certain considerations when dealing with Article 8 immigration cases. One of these considerations is section 117B(6), which provides:

In the case of a person who is not liable to deportation, the public interest does not require the person’s removal where—

(a) the person has a genuine and subsisting parental relationship with a qualifying child, and

(b) it would not be reasonable to expect the child to leave the United Kingdom.

The statutory provisions also incorporate the reasonableness test as well as requiring 7 years of residence.

In the case of Treebhawon and others (section 117B(6))[2015] UKUT 674 (IAC) the President held that this subsection means what it says: there is no public interest in the removal of a person where the criteria are satisfied. Proportionality is classically described as a balancing exercise, and where section 117B(6) applies one side of the scales is empty and such a person should always therefore succeed.

Case law on the 7 year period

Seven years was recognised as an important if rather arbitrary period of residence for children by the previous President of the Upper Tribunal in EM (Zimbabwe) CG[2011] UKUT 98 (IAC) and continued to be recognised in other cases including Azimi-Moayed and others (decisions affecting children; onward appeals)[2013] UKUT 197 (IAC).

These cases do not clearly establish what should happen to the parents of such a child, though.

The President has now issued an important determination on the correct approach to multiple applications and appeals from family members, specifically a parent or parents and a child or children with 7 years of residence. The case is PD and Others (Article 8 : conjoined family claims) Sri Lanka[2016] UKUT 108 (IAC).

The background was in some ways typical of this type of case. The parents had entered the UK as a student and student dependent in 2005. Their child, then aged 3, had come with them. They had all remained lawfully until 2010 but had overstayed since then. The child was now aged 14 and had lived for 11 years in the UK. Nevertheless, an application for leave to remain on the basis of 7 years of residence had been rejected by the Home Office and an initial appeal had been dismissed.

The official headnote gives us the bare bones of the correct legal approach:

In considering the conjoined Article 8 ECHR claims of multiple family members decision-makers should first apply the Immigration Rules to each individual applicant and, if appropriate, then consider Article 8 outside the Rules. This exercise will typically entail the consideration and determination of all claims jointly, so as to ensure that all material facts and considerations are taken into account in each case.

The President holds that it would be “artificial”, “unrealistic”, “a fiction”, “imaginary”, “surreal”, in breach of public law, in breach of the section 55 duty to have regard to the welfare of children and in breach of Article 8 itself to treat the cases of the family members entirely separately from one another:

It is the very essence of Article 8 ECHR claims based on the family life dimension of this Convention provision that there are relationships, bonds and ties joining together the members of the family unit in question. In circumstances where the claims of several family members coincide, it would be artificial and unrealistic to determine them on their individual merits, in a rigid sequence and in insulated packages, without reference to the other claims. [21]

See paragraphs 21 to 23 for yourself. The President is to be applauded here for not falling into the trap of treating children as mere parcels or as appendages of their parents rather than autonomous bearers of rights, as required by the UN Convention on the Rights of the Child. Even the earlier case of Azimi-Moayed and others (decisions affecting children; onward appeals)[2013] UKUT 197 (IAC) seemed to make this mistake, although it was never an approach that was explicitly endorsed by the Court of Appeal in EV (Philippines) & Ors v Secretary of State for the Home Department[2014] EWCA Civ 874 (write up here).

The President goes on to consider the three potential outcomes to the appeals:

The second of these options is quickly dismissed as totally unrealistic. The President carefully considers the other two possibilities and comes down in favour of all the appeals being allowed. His reasoning is essentially that the best interests of the child are clearly that he should remain in the UK with his parents, that this is a very weighty consideration and that by virtue of section 117B(6) there is no public interest in removal of the parents anyway.

On the interpretation of the word “reasonable” the President comments:

We remind ourselves that the test to be applied is that of reasonableness. Other legal tests which have gained much currency in this sphere during recent years – insurmountable obstacles, exceptional circumstances, very compelling factors – have no application in the exercise we are performing. Self-evidently, the test of reasonableness poses a less exacting and demanding threshold than that posed by the other tests mentioned.

This is surely the right approach and the President does not import any of the baggage of the various “exceptionality” tests that apply outside the Immigration Rules; this is a test that falls within the Immigration Rules, after all.

The President implicitly recognises that the incorporation of the seven year period into the Immigration Rules is significant because it normalises that period and turns it into an ordinary immigration category just like all the other immigration categories.

There is no hierarchy to the Immigration Rules. Each immigration category is as ‘good’ or valid as any other. Although different conditions and periods of leave might result, each immigration category is a ‘legitimate’ one that leads to a grant of leave of some sort. Paragraph 276ADE and Appendix FM EX.1. are not inferior, residual or failsafe categories: to think this is to read some additional extra-statutory requirements into the rules that are simply not there. Just as with any other immigration category, if a person meets the relevant criteria they are entitled to leave to enter or remain, absent other reasons for refusal such as the general grounds.

Accordingly, the word “reasonable” in paragraphs 276ADE and EX.1. and s.117B(6) is subject to the normal rules of statutory interpretation and is to be given its normal meaning. It is a term or test like many others in the Immigration Rules, such as ‘adequate’, ‘sole responsibility’, ‘genuine and subsisting’ and so on. Importantly, it does not import any sort of ‘exceptionalness’ threshold or similar because it is a normal application that is made under the Immigration Rules. There is no justification for the Home Office’s preferred ultra-stringent approach.

The Home Office may well not have appreciated this unintended consequence when the new immigration categories were created, but that is no surprise.

Applying this approach, the President reminds us that all the relevant considerations have to be taken into account:

We consider that the application of the reasonableness test involves a balance of all material facts and considerations. The application of this test will invariably be intensely fact sensitive, see EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41, at [7] – [12], per Lord Bingham. Ultimately, the factors to which we give determinative weight are the length of the third Appellant’s residence in the United Kingdom (some 11 years), which has spanned three quarters of his life; his deep immersion in all aspects of life in this country; the critical stage of his personal and educational development which has been reached; his minimal connections with his country of origin; and the likelihood that he will make a useful contribution to United Kingdom society.

It is refreshing here to see weight being given to the public interest in favour of allowing a child to settle in the UK.

Resources are invested into the education and welfare of children resident in the UK which will be repaid later in the child’s life if the child is permitted to remain but which will be ‘wasted’ if the child leaves. As a comparison think of Rowntree’s pre welfare state poverty cycle, showing that children might be born into poverty, might rise out of poverty as they and their siblings start to work and earn money but then fall back into poverty as they have their own children and support their own parents, re-starting the cycle.

Going beyond desiccated calculations of benefit to the public purse, settlement for children resident for a substantial period is a sensible integration measure which is the normal scheme for adults and it permits access to the full welfare safety net in the event it is needed, which is a sensible child protection measure.

The President gives due adverse weight to the unlawful overstay of the parents but observes that “a child’s best interests should not be compromised on account of the misdemeanours of its parents” and the appeals are all allowed.

Conclusion

Where a family with a child or children who have lived in the UK for 7 years or more apply for leave to remain on the basis of paragraph 276ADE(1)(iv), there is an increasingly strong argument that the applications should normally be granted if the period of residence is satisfied and there is no bad behaviour by the applicants, they are well settled and integrated and therefore it would not be reasonable for the child or children to have to start over with their life again in another country. The longer the child has lived in the UK, the stronger the case will be. Other factors working in an applicant’s favour would be lawful presence by the parents and residence as an older child.

An experienced immigration adviser would and should recommend that a person with lawful leave apply to extend their leave in a different category, however, if that is feasible. The Home Office seems hell bent on refusing such applications and the outcome of an appeal is always uncertain.

This post was originally published in 2014 and has been updated to incorporate Jane Heybroek’s comment below and then substantially re-written following the case of PD and Others.

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